Michigan Indian

Record of Decision in Kennecott Mine Adminstrative Adjudication

Matthew L.M. Fletcher2 Comments

Here: Kennecott FDO

Of note, the last paragraph on page 8 reads:

Of the six features specifically enumerated in Rule 202(2)(p), four unquestionably occur in structures: residential dwellings, schools, hospitals and government buildings. The other two, places of business and places of worship, could be reasonably construed as not requiring a structure. However, Rule 202(2)(p) contains a catch-all provision that the PFD did not address: “or other “buildings used for human occupancy all or part of the year.” R 425.202(2)(p). This inclusion of this phrase means an EIA must identify all buildings, including those used for the six enumerated features, in the proposed mining area and affected area. Consistent with the rules of statutory construction discussed above, I conclude, as a Matter of Law, Rule 202(2)(p) applies only to buildings used for human occupancy. I further conclude, as a Matter of Law, because Eagle Rock is not a building used for human occupancy, there is no basis to require the EIA identify and describe the feature as a “place of worship.” Concomitantly, the EIA submitted by Kennecott complies in all respects with § 62505(2)(b) and Rule 202, and I so conclude, as a Matter of Law.

Emphasis added.

So DEQ seems to have concluded that an outdoor American Indian sacred site is not a “place of worship” under the relevant law because it is not inside a building (as “used for human occupancy”). In other words, no American Indian place of worship can ever be a “place of worship” unless it’s inside a building.

Kennecott Mine Permits Okayed

Matthew L.M. Fletcher

From Michigan Messenger (h/t to A.K.) [DEQ press release here]:

Two days before the DEQceases to exist and a week after its director stepped down, DEQ moved to wrap up a long standing fight over permits for a planned nickel sulfide mine by concluding that only buildings may be considered “places of worship.”

A rock that is sacred toAnishnabe people need not be considered when issuing a mining permit because state law only recognizes buildings as places of worship, the Department of Environmental Quality announced Thursday.

This decision cleared the way for DEQ to finalize permits for a mine planned for public land on the Yellow Dog Plain northwest of Marquette.

The resolution comes at a time of great tumult for the department. Director Steven Chester resigned last week, and the department is slated to come under the leadership of DNR director Rebecca Humphries when it is rolled into the new Michigan Department of Natural Resources and Environment on Jan. 17.

For seven years the Kennecott Eagle Minerals Company, a subsidiary of London-based Rio Tinto, has been trying to develop the mine project. The company promised hundreds of construction and mining jobs but has faced opposition from groups that are concerned that acid drainage from the mine will damage the nearby Salmon Trout River and Lake Superior.

The National Wildlife Federation, Keweenaw Bay Indian Community, Yellow Dog Watershed Preserve, and the Huron Mountain Club together filed an administrative appeal of DEQ’s 2007 approval of mining and groundwater discharge permits for the mine. Continue reading →

Additional News Coverage of Asian Carp Debacle

Matthew L.M. Fletcher

From How Appealing:

“Asian carp DNA found in Lake Michigan; High Court inaction angers Mich. leaders”:The Detroit News has an update that begins, “On the same day the U.S. Supreme Court announced it would not take immediate action to prevent Asian carp from reaching Lake Michigan, DNA samples indicate the fish may already be there.”

The Detroit Free Press has a news update headlined “Granholm: White House summit about carp needed.”

The Chicago Tribune has a news update headlined “Army Corps: Asian carp DNA found in Lake Michigan.”

And James Vicini of Reuters reports that “Michigan request denied in Great Lakes carp case; High court won’t order closing of two Chicago-area locks; Federal government said Michigan was unlikely to prevail; Closing locks would hurt shippers.”

AP Article on Asian Carp Case

Matthew L.M. Fletcher

From the AP via How Appealing:

TRAVERSE CITY, Mich. (AP) — The U.S. Supreme Court on Tuesday refused to order immediate closure of shipping locks near Chicago to prevent Asian carp from infesting the Great Lakes.

The court rejected a request by Michigan for a preliminary injunction to close the locks temporarily while a long-term solution is sought to the threatened invasion by the ravenous fish. The one-sentence ruling didn’t explain the court’s reasoning.

Asian carp, primarily bighead and silver varieties, have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades. They have swarmed waterways near Chicago leading to Lake Michigan.

Scientists fear that if they reach the lakes, they could disrupt the food chain and endanger the $7 billion fishery.

The biggest Asian carp can reach 4 feet in length and weigh 100 pounds while consuming up to 40 percent of their body weight daily in plankton, the foundation of the Great Lakes food web.

Many scientists say they could starve out popular species such as trout and salmon.

They also are spooked by passing motors and often hurtle from the water, colliding with boaters forcefully enough to break bones.

Officials poisoned a section of the canal in December after discovering genetic material that suggested at least some carp might have eluded an electric barrier on the Chicago Sanitary and Ship Canal and could be within six miles of Lake Michigan. If so, the only other obstacles between them and the lake are shipping locks and gates.

Last week, the U.S. Army Corps of Engineers said additional carp DNA – but no live fish – had been found in three different spots along the Chicago River within a mile of where it flows into Lake Michigan.

Michigan, joined by Minnesota, New York, Ohio and Wisconsin and the Canadian province of Ontario, asked the high court to order the locks closed as a stopgap measure while considering a permanent separation between Lake Michigan and the Mississippi River basin. Continue reading →

Asian Carp Plea Denied

Matthew L.M. Fletcher

From SCOTUSblog:

The Supreme Court refused on Tuesday to order emergency measures sought by the state of Michigan to stop the migration of an invasive fish species, Asian carp, toward Lake Michigan from rivers and a sanitary canal in Illinois.  Without comment, the Court refused to issue a permanent injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers.  The Court’s order did not dispose of Michigan’s plea to reopen a decades-old decree to address the carp migration issue on its merits. That will come later in cases 1, 2 and 3 Original, Wisconsin, Michigan and New York v. Illinois.

News Coverage Update on Asian Carp Case

Matthew L.M. Fletcher1 Comment

From How Appealing:

“Something’s Fishy at the High Court”: Tony Mauro of The National Law Journal has this report.

And last Sunday’s edition of The Chicago Tribune contained an article headlined “Asian carp: Take that carp and fry it; River invader is more tasty morsel than maligned in some quarters.”

Update on Gun Lake Casino Construction

Matthew L.M. Fletcher4 Comments

From K’zoo Gazette via Pechanga:

Gun Lake Casino construction 1View full sizeShawano Cleary | Special to the Kalamazoo GazetteBob Ely, of Ace Steel and his partner, Riley Beight, work on the Gun Lake Casino in Wayland Township last week.
WAYLAND TOWNSHIP — Cooperative weather up until mid-December allowed work crews constructing the Gun Lake Casino in Wayland Township to get a bit ahead of schedule on the 83,000-square-foot facility.

Gun Lake Casino Artist renderingView full sizeHandout photo.Artist rendering of the exterior of the planned Gun Lake CasinoThe foundation has been laid and steel beams are being installed on the $157 million casino — less than half the size originally planned— off Exit 61 on U.S. 131, halfway between Grand Rapids and Kalamazoo on the former Ampro Products factory site. It is scheduled to open at the end of this summer. Continue reading →

Op/Ed on Saginaw Chippewa Fee to Trust Application

Matthew L.M. Fletcher

From the Morning Sun via Pechanga:

The Saginaw Chippewa Indian Tribe is following the lead of many other Tribes across the country by purchasing land, then asking that the land be put into trust by the federal government.

It’s a historical fact that much of the land allotted to the Native people during the 19th century was swindled away from its rightful owners by unscrupulous lumber barons, land barons and railroad barons. Now that the Tribe has substantial resources, it has been quietly but persistently purchasing property.

When land is in trust, there is no question of Tribal sovereignty on that land. The land where the Soaring Eagle Casino & Resort sits has been in trust for decades, and no one questions that the Tribe and the federal government have jurisdiction there; the state, county and Chippewa Township don’t.

There’s also no question that land in trust is not taxable by local governments. There’s no question that local governments’ zoning rules don’t apply there, either.

When the Tribe owns land that’s not in trust, it pays taxes on them. It’s subject to local and state regulation, like land owned by any other property owner. Continue reading →

News Article on Possible Cross-Dep between GTB and Grand Traverse County

Matthew L.M. Fletcher

From local TV:

Grand Traverse County could be getting new officers, but without hiring any new ones. It’s part of a cross deputization proposal from the Grand Traverse Band of Ottawa and Chippewa Indians. What are the implications and how might it give a boost to the sheriff’s department budget?

The details are tonight’s Fact Finder Report.

We may all live in northern Michigan, but a complicated past has left some of us in different legal territory.

John Petoskey, General Council for the Grand Traverse Band of Ottawa and Chippewa Indians says, “Because of the history of the relationship between tribes in the U.S. tribes do not have criminal jurisdiction over non tribe members and the state does not have criminal jurisdiction over tribal members.”

One aspect of that relationship may be changing.

The Grand Traverse Band and Grand Traverse County are discussing a cross deputization agreement.

Petoskey says, “What the cross deputization agreement would provide is the ability of the officer on the ground to make the arrest and sort out who has jurisdiction the next day.”

Right now if there’s a non tribal member breaks the law on property owned by the tribe, like Turtle Creek Casino, right now tribal officers can kick them off the property for trespassing, but that’s about it.

Petoskey says, “If we had a cross deputization agreement the tribe would be acting as deputies of Grand Traverse County to affect the arrest. The prosecution would still take place in Grand Traverse County though.”

Currently the Grand Traverse Band has similar agreements in 4 area counties; Charlevoix, Antrim, Benzie and Leelanau counties. He says those agreements are each for a number of years, but can be rescinded with a 30 day notice. And tribal leaders are using that model as the proposal for Grand Traverse County.

But why is Grand Traverse County the only county in the greater Grand Traverse Region without this kind of agreement?

You might blame it on previous administrations. Continue reading →

Op/Ed re: Carcieri Fix

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

The Grand Traverse Band of Ottawa and Chippewa Indians celebrates its 30th anniversary of federal recognition this year, but nothing, apparently, is sacred in ever-changing federal American Indian policy.

A controversial Supreme Court ruling last year blocks many American Indian tribes recognized by the U.S. Interior Secretary after 1934 from making more land-to-trust applications.

The high court’s Carcieri vs. Salazar ruling on Feb. 24, 2009, and politics surrounding a proposed legislative fix, show just how frustrating, confounding and shameful federal American Indian policy has been over more than two centuries of American history — and apparently still is.

The ruling appears to have no effect on the Grand Traverse Band, which was recognized in 1980. In fact, the Interior Department approved trust status for 78 acres in Antrim County on Dec. 10.

The ruling also does not appear to affect two other area tribes — the Little Traverse Bay Bands of Odawa Indians in Emmet County and the Little River Band of Ottawa Indians in Manistee County, both recognized in 1994 by federal statute. Continue reading →